The Court upheld a man’s conviction for selling “bath salts,” despite his claim that selling the substance was not illegal when he was arrested.

The Court upheld a man’s conviction for selling “bath salts,” despite his claim that selling the substance was not illegal when he was arrested.

The Supreme Court of Ohio today rejected a man’s latest attempt to overturn his conviction for selling “bath salts” in 2012, despite his claim that the sale of the substance was not illegal when he was arrested.

The Supreme Court ruled that Soleiman Mobarak could not seek a writ of mandamus to vacate his criminal conviction and 35-year prison term. The Court noted that requesting a writ cannot serve as a “second appeal” after Mobarak lost his last appeal in 2017.

Mobarak won his first appeal when the Tenth District Court of Appeals in 2014 reversed
a jury's decision to convict him. The appeals court found that the sale of the drugs, commonly known as bath salts, was not criminalized until months after Mobarak’s arrest. However, the Supreme Court reversed the Tenth District’s ruling in 2016, finding the sales at the time were illegal. Subsequently, the Tenth District affirmed his conviction in 2017.

In a per curiam opinion, the Supreme Court today ruled that Mobarak’s writ was improper, and he exhausted his attempt to challenge the conviction when his sentence was upheld in 2017.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Melody Stewart, and Joseph T. Deters joined the opinion.

In a concurring opinion, Justice Michael P. Donnelly called the case “disturbing,” stating the Court used “paper thin” reasoning to conclude that Mobarak’s actions were illegal at the time he was arrested. However, he agreed with the Court majority that Mobarak could not seek relief by asking the Court for a writ.

Justice Jennifer Brunner did not participate in the case.

Convenience Store Owner Challenges Arrest
In 2012, Mobarak operated a convenience store in Franklin County where he sold a stimulant known as “bath salts.” According to the U.S. Drug Enforcement Administration, bath salts mimic the effects of cocaine, methamphetamine, and ecstasy, which are all illegal “controlled substances.”

Mobarak was indicted on charges of engaging in a pattern of corrupt activity, aggravated trafficking of drugs, and aggravated possession of drugs. After a jury trial, he was found guilty. In 2014, Mobarak filed a direct appeal of his conviction to the Tenth District. The appeals court agreed, finding that bath salts constituted a “controlled substance analog.” It was not until December 2012 that the state established that it was a crime to possess or sell controlled substance analogs, the appeals court concluded.

The Franklin County Prosecutor’s Office appealed the decision to the Supreme Court. The Court agreed to consider the appeal, and held the case until it ruled on a similar case. Along with Mobarak, others convicted of controlled substance analogs had challenged their convictions to the Court.

In its December 2016 State v. Shalash decision, the Court ruled that the state considered controlled substance analogs that have a similar chemical substance and similar effects as illegal controlled substances to be illegal starting in 2011. On that day, the Court decided five other cases based on Shalash, including Mobarak’s appeal. The Court reversed the Tenth District’s decision and remanded Mobarak’s case for further proceedings.

In 2017, the Tenth District affirmed Mobarak’s conviction.

Authority of Trial Court to Consider Case Questioned
In 2023, Mobarak requested that the Supreme Court find that the trial court in 2012 lacked jurisdiction to hear his case and the matter should never have gone to trial. As he did in his appeal, he maintained that no statute prohibited the possession or sale of bath salts at the time his offense occurred.

The trial judge asked the Supreme Court to dismiss the case, arguing that Mobarak had the chance to argue this point during his appeal and he lost.

Today, the Court explained that Mobarak had to demonstrate that the trial court clearly lacked the right to consider the criminal case against him. The Court noted that R.C. 2931.03 states that common pleas courts have jurisdiction over “all crimes and offenses” unless another statute gives another court jurisdiction over the matter.

Because Mobarak was charged with multiple felonies, the common pleas court had the right to consider the case, the Court noted. The Court found Mobarak did not provide any legal support for his claim that the trial court could not hear the case. And while Mobarak might believe the trial court made the wrong decision to convict him, that issue was already decided, the Court concluded.

Court Should Not Have Tried Seller, Concurrence Maintained
Finding that state law gave the trial court the right to consider Mobarak’s felony charges fails to answer Mobarak’s key question in his challenge, Justice Donnelly wrote in his concurring opinion. For the trial court to have jurisdiction to try Mobarak for a crime, the Revised Code must set out a prohibited act and a corresponding penalty for an act Mobarak was accused of committing, he wrote.

Mobarak’s sales of bath salts for which he was charged took place between March and July 2012. At the time, criminalization of drug sales referred only to “a controlled substance,” the concurrence noted. It was not until House Bill 334 took effect in December 2012 that it became illegal to sell “controlled substance analogs.” Justice Donnelly stated he was not convinced the trial court had jurisdiction to hear the case because Mobarak had not yet committed a crime.

The concurrence noted that in Shalash, the Supreme Court majority found that a separate section of the Revised Code, R.C. 3719.013, provided a civil regulation that required controlled substance analogs to be treated the same under the law as controlled substances. In Shalash, the Court ruled that R.C. 3719.013 became law in 2011 and could be used for a criminal conviction.

Justice Donnelly wrote that nothing in state law indicated that the civil regulation in R.C. 3719.013 would apply to criminal offenses. He argued if it was clear in 2012 that analogs were criminally illegal to sell, why did the General Assembly subsequently pass H.B. 334 making their sale a crime?

“No person, however reprehensible his or her conduct is, should be subjected to criminal liability for committing an act that the law does not criminalize. Despite that principle, Soleiman Mobarak is serving 35 years in prison for acts that were not criminalized when he committed them,” Justice Donnelly wrote.

2023-0369. State ex rel. Mobarak v. Brown, Slip Opinion No. 2024-Ohio-221.

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